Where the executant of a deed wants it to be an- nulled, he has to seek cancellation of the deed - if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him.

Citation

(2010) 12 SCC 112

AIR 2010 SC 2807

2010 AIR SCW 3308

Suhrid Singh alias Sardool Singh v. Randhir Singh and others 

 In the said case, the Court referred to several elaborate prayers contained in the plaint and summarized the same. The Court took note of the fact that the issue had come before the trial court which had come to hold that prayers relating to the sale deeds amounted to seeking cancellation of the sale deeds and, therefore, ad volerem court fee was payable on the sale con- sideration in respect of the sale deeds. The said view was af- firmed in the revision. The Court addressed the core issue pertaining to court fee payable in regard to the prayer for a declaration that the sale deeds were void and not “binding on the coparcenary”, and for the consequential relief of joint possession and injunction. After referring to the provisions of the Court Fees Act, 1870 as amended in Punjab (as the controversy arose from the High Court of Punjab and Haryana), the Court held:

“Where the executant of a deed wants it to be an- nulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/con- veyance, can be brought out by the following illus- tration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the execu- tant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the con- sideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a dec- laration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Sec- ond Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a decla- ration that the sale deed is invalid, but also the con- sequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act.

Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valua- tion shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.”